# C_2019270EN.01002701.xml

| 12.8.2019 | EN | Official Journal of the European Union | C 270/27 |
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12.8.2019

EN

Official Journal of the European Union

C 270/27

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Appeal brought on 27 June 2019 by Romania against the order of the General Court (Eighth Chamber) delivered on 30 April 2019 in Case T-530/18, Romania v Commission

(Case C-498/19 P)

(2019/C 270/30)

Language of the case: Romanian

Parties

Appellant: Romania (represented by: C.-R. Canțăr, E. Gane, O.-C. Ichim and M. Chicu, acting as Agents)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | uphold the appeal, set aside the order of the General Court in Case T-530/18 in its entirety, and give a new ruling on Case T-530/18 upholding the action for partial annulment of Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD): (1)







  (a) | as regards sub-measure 1a in its entirety (EUR 13 184 846,61 for the years 2015 and 2016); |
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—

uphold the appeal, set aside the order of the General Court in Case T-530/18 in its entirety, and give a new ruling on Case T-530/18 upholding the action for partial annulment of Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD): (1)

(a)

as regards sub-measure 1a in its entirety (EUR 13 184 846,61 for the years 2015 and 2016);

| (b) | as regards sub-measures 3a, 5a, 3b and 4b in their entirety (EUR 45 532 000,96 for the years 2014, 2015 and 2016) and, in the alternative, in part for the period prior to 19 September 2015 (EUR 21 315 857,50);
  or |
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(b)

as regards sub-measures 3a, 5a, 3b and 4b in their entirety (EUR 45 532 000,96 for the years 2014, 2015 and 2016) and, in the alternative, in part for the period prior to 19 September 2015 (EUR 21 315 857,50);

or

| — | uphold the appeal, set aside the order of the General Court in Case T-530/18 in its entirety, and remit Case T-530/18 back to the General Court so that it may give a new ruling on the action and, in so doing, uphold the action for annulment and annul in part Implementing Decision (EU) 2018/873 as described above; |
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—

uphold the appeal, set aside the order of the General Court in Case T-530/18 in its entirety, and remit Case T-530/18 back to the General Court so that it may give a new ruling on the action and, in so doing, uphold the action for annulment and annul in part Implementing Decision (EU) 2018/873 as described above;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Grounds of appeal and main arguments

| A. | Infringement of Articles 263 and 297 TFEU, and failure to observe the principle of legal certainty







  i. | The General Court did not correctly legally assess whether the notification was complete and correct and incorrectly classified the notification issued by the Commission as capable of triggering the period laid down in Article 263 TFEU. This approach by the General Court is also at odds with the principle of legal certainty.

  Romania considers that the presence of any errors relating to the essential elements of a decision such as Decision 2018/873 is capable of compromising the notification and raises serious issues from the point of view of the principle of legal certainty. Consequently, it is sufficient that some errors are present, such as those established by the General Court, for the notification issued by the Commission to be incapable of triggering the period laid down in Article 263 TFEU.
  The General Court classified the differences between the published and notified versions of Decision 2018/873 as minor, relying on the fact that the meaning of the text of the decision was unaltered, since the word ‘amount’ could only correspond to the ‘estimated by amount’ type of adjustment. Given that that type of adjustment does not exist, Romania considers that the legal reasoning of the General Court is incorrect and it can easily be observed that the meaning of the text of Decision 2018/873 has been affected, and that the notification has been compromised. |
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A.

Infringement of Articles 263 and 297 TFEU, and failure to observe the principle of legal certainty

i.

The General Court did not correctly legally assess whether the notification was complete and correct and incorrectly classified the notification issued by the Commission as capable of triggering the period laid down in Article 263 TFEU. This approach by the General Court is also at odds with the principle of legal certainty.

Romania considers that the presence of any errors relating to the essential elements of a decision such as Decision 2018/873 is capable of compromising the notification and raises serious issues from the point of view of the principle of legal certainty. Consequently, it is sufficient that some errors are present, such as those established by the General Court, for the notification issued by the Commission to be incapable of triggering the period laid down in Article 263 TFEU.

The General Court classified the differences between the published and notified versions of Decision 2018/873 as minor, relying on the fact that the meaning of the text of the decision was unaltered, since the word ‘amount’ could only correspond to the ‘estimated by amount’ type of adjustment. Given that that type of adjustment does not exist, Romania considers that the legal reasoning of the General Court is incorrect and it can easily be observed that the meaning of the text of Decision 2018/873 has been affected, and that the notification has been compromised.

| ii. | The General Court erred in its interpretation of Article 263 TFEU in the light of Article 297 TFEU by failing to take into consideration the effects of the publication of Decision 2018/873 in the Official Journal of the European Union from the point of view of effective information and the principle of legal certainty.
  According to the sixth paragraph of Article 263 TFEU, what is relevant in the context of exercising the right to bring proceedings is effective information relating to the content of the contested EU measure, and not the moment when it enters into force or the moment when it produces legal effects.
  The moment from which the period of 2 months for bringing an action for annulment of a measure such as Decision 2018/873, which must be notified but which, according to the consistent and long-standing practice of the issuer, must also be published in the Official Journal of the European Union, begins to run must be the moment of publication, plus the period of 14 days laid down by Article 59 of the Rules of Procedure of the General Court.
  That solution is all the more necessary in view of the specific circumstances in which Decision 2018/873 was notified to the Romanian authorities and published — circumstances which reveal differences between the notified text and the published text which concern essential elements of that decision. |
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ii.

The General Court erred in its interpretation of Article 263 TFEU in the light of Article 297 TFEU by failing to take into consideration the effects of the publication of Decision 2018/873 in the Official Journal of the European Union from the point of view of effective information and the principle of legal certainty.

According to the sixth paragraph of Article 263 TFEU, what is relevant in the context of exercising the right to bring proceedings is effective information relating to the content of the contested EU measure, and not the moment when it enters into force or the moment when it produces legal effects.

The moment from which the period of 2 months for bringing an action for annulment of a measure such as Decision 2018/873, which must be notified but which, according to the consistent and long-standing practice of the issuer, must also be published in the Official Journal of the European Union, begins to run must be the moment of publication, plus the period of 14 days laid down by Article 59 of the Rules of Procedure of the General Court.

That solution is all the more necessary in view of the specific circumstances in which Decision 2018/873 was notified to the Romanian authorities and published — circumstances which reveal differences between the notified text and the published text which concern essential elements of that decision.

| iii. | The General Court failed to observe the principle of legal certainty by considering that one of the inconsistencies raised by Romania (concerning the type of adjustment — ‘estimated by amount’ versus ‘flat rate’) constitutes a minor clerical error which was made in the notified and published text but which was not made either in the course of the administrative procedure or in the summary report and which does not give rise to confusion as to the nature of the adjustment. |
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iii.

The General Court failed to observe the principle of legal certainty by considering that one of the inconsistencies raised by Romania (concerning the type of adjustment — ‘estimated by amount’ versus ‘flat rate’) constitutes a minor clerical error which was made in the notified and published text but which was not made either in the course of the administrative procedure or in the summary report and which does not give rise to confusion as to the nature of the adjustment.

| iv. | The General Court infringed Article 263 TFEU by finding that the differences between the notified text and the text published in the Official Journal of the European Union concerning provisions of Decision 2018/873 addressed to other Member States of the European Union were irrelevant and without effect, in view of the privileged applicant status of Member States. |
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iv.

The General Court infringed Article 263 TFEU by finding that the differences between the notified text and the text published in the Official Journal of the European Union concerning provisions of Decision 2018/873 addressed to other Member States of the European Union were irrelevant and without effect, in view of the privileged applicant status of Member States.

| B. | Failure to observe the principle of audi alteram partem, including in relation to Article 64 of the Rules of Procedure of the General Court

  Romania considers that the General Court failed to observe the principle of audi alteram partem by failing to offer the Romanian authorities the opportunity to adopt a position with regard to the information, communicated by the Commission in response to the question put by that court, on the basis of which the action was dismissed as inadmissible. |
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B.

Failure to observe the principle of audi alteram partem, including in relation to Article 64 of the Rules of Procedure of the General Court

Romania considers that the General Court failed to observe the principle of audi alteram partem by failing to offer the Romanian authorities the opportunity to adopt a position with regard to the information, communicated by the Commission in response to the question put by that court, on the basis of which the action was dismissed as inadmissible.

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(1)  Commission Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2018 L 152, p. 29).

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